NI’s Illegal Migration Act cases: the part we played in the disapplication decision
Northern Ireland’s legal challenges to the Illegal Migration Act have grabbed headlines. Read on to discover why PILS was proud to contribute to this week’s landmark decision.
“A thorn in the (UK government’s) side”
“The beginning of the end” (of the hostile environment policies)
Whatever descriptor you prefer, it’s fair to say that the Belfast High Court decisions in Northern Ireland Human Rights Commission’s Application and JR295’s Application have attracted local, national and international attention since they were handed down on Monday (13 May).
This blog opens with a disclaimer: this is not proposing to sum up [2024] NIKB 35 in a pithy 700 words. It’s a complex, multi-layered decision, one that took Mr Justice Humphreys almost two hours to hand down on Monday morning. The court’s own summary alone spans to ten pdf pages!
Stellar minds have already provided detailed X (née Twitter) threads that you can dip into here, here and here.
Instead, PILS are taking you behind the commentary to share more detail on the part that we are proud to have played in these headline-grabbing proceedings.
The cases
Northern Ireland Human Rights Commission (NIHRC) argued that the Illegal Migration Act 2023 (IMA) did not comply with the UK’s national and international human rights obligations. The case, heard over three days in January 2024, was the first taken by NIHRC against the UK Government under Article 2 of the Windsor Framework.
In the separate but related case of JR295, a 16-year-old asylum seeker from Iran challenged the legislation’s effect on unaccompanied children who are seeking asylum in Northern Ireland. His solicitor, Sinéad Marmion of PILS solicitor member firm, Phoenix Law, said that he was ‘terrified’ at the idea of being removed from Northern Ireland.
Mr Justice Humphreys has ordered that certain provisions of the IMA must be disapplied in Northern Ireland. His judgment declared other sections of the IMA to be incompatible with the European Convention on Human Rights.
One of the arguments that NIHRC put forward in its case was that many of the countries on the so-called ‘safe list’ were far from places of sanctuary for many people seeking protection. For example, four of the 57 countries that the UK government categorised as ‘safe’ have not signed the 1951 Refugee Convention – the international agreement that defines who is a refugee and the level of protection they can expect.
What did PILS do?
In summer 2023, as the controversial Illegal Migration Bill wove its way through parliament, PILS and the Human Rights Consortium (one of our Human Rights Partnership colleagues) were consistently calling out its (moral and legal) shortcomings.
When NIHRC confirmed, in September 2023, that it was issuing ‘last-resort’ legal proceedings against the newly passed Act, they asked civil society organisations to share their expertise with the NIHRC legal team to bolster the case.
PILS and HRC were keen to share our understanding with the court. One very practical way of doing this was by utilising PILS’ bespoke Country of Origin Information Report service.
Launched in summer 2023, PILS can commission tailored Country of Origin Information reports for local immigration practitioners and organisations supporting people seeking protection. These reports provide objective evidence on the current situation faced by certain groups in a specific country and are compiled – free of charge – for PILS member organisations by lawyers from international law firm Clifford Chance.
Our Director Maria spoke about the impact of the COI scheme in more detail on a recent episode of our To Be Fair NI podcast (from 32 mins):
The Human Rights Consortium applied to PILS for this support. Specifically, they asked for research on the possible risk faced by asylum seekers if they were removed to Albania, Rwanda, India, Kosovo, Mongolia, and Mauritius.
These detailed reports were then shared with NIHRC’s legal team, bolstering their evidence and emphasising the real-life impact of the legal arguments they submitted to the court.
What difference did that make?
These reports provided the court with a clear, comprehensive and reliable evidence base. Their objective contents brought the unsafe reality of life on the ground in some of the UK government’s purported safe havens into the heart of the High Court proceedings.
In his 13 May judgment, Mr Justice Humphreys actually referenced the safe country evidence provided to NIHRC in several of the COI reports [at para. 123].
Just hours after the decision was announced, NIHRC told PILS: “We’re grateful for the invaluable reports provided and their contribution to the successful outcome”.
The cases have also re-emphasised the truly universal nature of human rights. They are not a privilege bestowed by governments on the chosen few. Human rights are a promise to us all and are designed to protect everyone in our communities.
What’s next?
In the short-term, the court’s decision has generated a swathe of commentary, analysis and animated conversation about the unique human rights protections contained in Article 2 of the Windsor Framework.
The UK government swiftly indicated its intention to appeal the decision, with PM Rishi Sunak saying “we must start the flights to stop the boats” just hours after it was handed down. (A reference to the equally contentious Rwanda scheme, another pillar of the Conservative government’s hostile immigration policy that has previously been deemed unlawful.)
In the meantime, the parties in the IMA cases are set to return to Belfast’s High Court on Wednesday 29 May. There will be a brief hearing (at 09.30 approximately) to discuss issues like costs and the actual wording of the instructions that the judge will give (referred to as an ‘order’).
The PILS Country of Origin Information Report service
The service – designed by PILS in response to unmet need and immigration sector pressures – is run in collaboration with international law firm Clifford Chance.
Their 100+ strong team of lawyers have already contributed over 700 hours of research to PILS members since we launched this service in June 2023 – all free of charge!
If you are:
- a legal practitioner in Northern Ireland
- or an NI-based organisation supporting people seeking safety here
and you would like to get help from our COI Report service, contact PILS Pro Bono Coordinator Kate Barry on kate[at]pilsni.org